(concurring in part and dissenting in part)
[¶ 49.] I generally agree that requiring car race participants to sign a release of liability is not violative of public policy. *799However, it was improper to grant summary judgment on the issue of Holzer’s knowledge or voluntariness, because genuine issues of material fact were presented to the court.
[¶ 50.] Initially, it must be noted that summary judgment is usually not suitable in actions involving state of mind. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 22 (1968). See also, Ahl v. Arnio, 388 N.W.2d 532, 534 (S.D.1986). “[Sjurmise that a party will not prevail upon trial is not sufficient basis to grant [summary judgment] on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them.” Wilson, 83 S.D. at 212, 157 N.W.2d at 21; see also, Ahl, 388 N.W.2d at 533. On appeal, we are not to decide the issue of fact, only whether one exists. Wilson, 83 S.D. at 211,157 N.W.2d at 21.
[¶ 51.] The record contains several items that raise a legitimate factual issue whether Holzer knowingly or willingly signed the waiver. First, the waiver form itself, which is attached to this writing, is confusing and misleading. At the bottom half of the roster-like form there are 18 lines containing the same number of signatures. Each signer is asked to print his name, sign his name over a provision that states, “I have read this release,’’and list his duties. Holzer’s printed name, signature, and “# 2” appear on the second line of the waiver, followed by sixteen other signatures.
[¶ 52.] Next, the record contains the affidavit of Jay Sanner, who has attended many automobile races, including races at Lake County Speedway, and has entered and worked in the pit area for various race car drivers. Based on his familiarity with the process utilized to gain entrance to the pit area of Lake County Speedway, he testified that, “upon entrance to the gate, a waiver form is handed to the individual entering the pit, they are told to print and sign in, and then pay their entry fee.” In addition, “there are several people waiting to gain entrance to the pit area at the same time. The only thing on [Sanner’s] mind at the time of entering the gate is racing and therefore no attempt is made to read the aforementioned waiver form. To the best of [Sanner’s] knowledge, this is the only way into the pit area before entering a race.”
[¶ 53.] The waiver form and Sanner’s affidavit, together with common knowledge, could well lead a factfinder to conclude that Holzer unknowingly or involuntarily signed the waiver form as part of the pressure-filled routine of gaining access to the pit area. These pieces of evidence show that Holzer was among a steady stream of people waiting to enter the pit area that night.
[¶ 54.] As Sanner’s affidavit points out, the important ramifications of signing the waiver were not discussed or even mentioned to those participants waiting in line to enter. Instead, they were all handed the roster-like form, told to print and sign their name, and then required to pay a fee. In this situation, the last thing on the mind of these entrants was understanding their legal rights. Rather, they were focused on getting into the pit area to prepare for the race. Surely, when faced with the choice of blindly signing the roster-form and proceeding on into the pit area, or not signing and jeopardizing the qualification of his team to race, a participant would opt for the former.
[¶ 55.] Moreover, the format of the waiver form clearly, served to de-emphasize its important legal effect. Indeed, it could be more likened to a petition or a roster (forms that do not require an individual to pause and appreciate the consequences of signing such a document) than a legally binding release of liability. With its small print, single-spaced paragraphs, and blank lines for numerous signatures at the bottom, a reader could easily confuse the form with a document of insignificant legal ramifications, especially when it was presented without explanation. It would have been a *800more meaningful and appropriate process had each person been given an individual release and waiver.
[¶ 56.] That none of the participants appreciated the significance of what they were signing is evident from the waiver form itself. Where it directed participants to list their “duties,” everyone, including Holzer, merely listed numbers, which presumably referred to the number of the car on whose team they worked. Such a vague response .supports the contention that either the form was confusing or the signers were hurried into signing it, or both.
[¶57.] Any spectator at this type of event has certainly seen the parade of vehicles pulling race cars on trailers waiting to enter the pit area prior to the race. The format of the waiver form, together with the circumstances under which participants such as Holzér were required to sign, create a question about how knowing or voluntary such a release of liability could have been. Like the line of spectators waiting to get into the race in Eder v. Lake Geneva Raceway, Inc., 187 Wis.2d 596, 523 N.W.2d 429 (Ct.App.1994), there was no meaningful opportunity for Holzer to read the agreement before signing. “We cannot believe [Speedway] intended that entrants would hold up the progression of cars into the racetrack in order to read the release.” Id. at 432. In this situation, Holzer’s signature would not have been entirely voluntary; at least a fact question for a jury is present.
[¶ 58.]-Further compounding the hurried, pressure-filled situation facing Holzer was the fact that he might not have had the ability to read or comprehend the waiver form. The record contains an affidavit from Paul Holzer to this effect, stating that “Vernon was a very poor student. ... His reading comprehension was very low.” The form, which contains an abundance of legal terms, was seemingly a boilerplate document drafted by lawyers. See, e.g., Eder, 523 N.W.2d at 433 n.6; Haines v. Saint Charles Speedway, Inc., 874 F.2d 572/ 574 (8thCir.l989) (providing examples of similar waiver forms). To a person with limited reading function, the form could have just as well been one of Plato’s dialogues, with legalese such as “indemnity,” “in consideration of,” “covenants not to sue,” and “hold harmless” in bold capital letters. Holzer’s poor reading ability, combined with the large crowd of participants waiting to gain access to the pit area behind him, surely could have created a situation where he signed the waiver form just to keep the flow of people going. At the very least, it creates a genuine issue of material fact.
[¶ 59.] The majority states that “there is no evidence in the record that Holzer was denied the opportunity to step out of any line that may have existed and read-the release had he so desired.” So what? Neither does it show that Speedway offered to let him step aside and read it. The majority opinion further concludes that “[t]here is no evidence in the record that he was forced to sign it.” Such a conclusion is out of touch with the realities of the situation. For reasons noted above, this is clearly not the same scenario as that presented in Haines, where the court opined that if the plaintiff was functionally illiterate, it was his duty to have someone read the release to him before signing it. 874 F.2d at 575.
[¶ 60.] Under our summary judgment standard of review, we are bound to independently review the record for any genuine issue of material fact, in a light most favorable to Holzer, the non-moving party. Fritz v. Howard Township, 1997 SD 122, ¶ 8, 570 N.W.2d 240, 241. We are not to decide ■ whether such facts have merit, as the majority has done. “The question presented by a motion for summary judgment is whether or not there is a genuine issue of material fact. ‘It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.’ ” Piner v. Jensen, 519 N.W.2d 337, 340 (S.D.1994) (quoting Wilson, 83 S.D. at 211,157 N.W.2d at 21).
*801[¶ 61.] Guided by this standard of review, I find a genuine issue of material fact exists as to Holzer’s knowledge or intent in signing the waiver. It should now be left to the factfinder to decide the merits of the claim. As Justice Sabers has appropriately observed: “The Constitution guarantees the right to a jury trial — the trial court denied it. The Constitution guarantees that courts shall remain open — the trial court closed it.” Reeves v. Reiman, 523 N.W.2d 78, 87 (S.D.1994) (Sabers, J., concurring in result in part and dissenting in part). That principle clearly applies here. I would reverse.
*802RELÉASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT
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IN CONSIDERATION of boina permitted to compete, officiate, observe, work for. or participate In any way in the EVENT(S) or being permitted to enter tor any potpose any RESTRICTED AREA (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general pubBc is restricted or prohibited), EACH OF THE UNDERSIGNED, lor himself, his personal representatives, heirs, and next of kin:
1. Acknowledges, agrees, and represents that he has or wiB Immediately upon entering any of Birch RESTRICTED AREAS, and wilt continuously thereafter, Inspect the RESTRICTED AREAS which he enters and he further agrees and warrants that, if at any time, he Is in or about RESTRICTED AREAS and he feels anything to be unsafe, he wffl Immediately advise the offc.,13 of 6uch and will leave the RESTRICTED AREAS and/or refuse to participate further In the EVENT(s).
2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision thereof, track operators, track owners, officials, car owneis, drf-vets, pit crews, rescue personnel, any persons in any RESTRICTED AREA, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the EVENT(S), premises end event Inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or Instructions or engage In risk evaluation or losa control activities regarding the premises or EVENT(S) and each of thorn, their directors, officers, agents and employees, at) for the purposes herein referred to as "Reléaseos," FROM ALL LIABILITY,TO THE UNDERSIGNED, his personal representatives, assigns, Iwlra, and next of tdn FOR ANY AND ALL LOSS OR DAMAGE, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
3. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the Rotéaseos end each ot them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may Incur arising out of or related to the EVENT(S) WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
A. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or olheiwtee.
S. HEREBY acknowledges'that THE ACTIVITIES OF THE EVENTfS) ARE VERY DANGEROUS and involve the risk of aerious injury and/or death and/or property damage. Each of THE UNDERSIGNED also expressly acknowledge» that INJURIES RECEIVED MAY BE COMPOUNDED OR INCREASED BY NEGLIGENT RESCUE OPERATIONS OR PROCEDURES OF THE RELEASEES.
a HEREBY agrees that Bits Release and Waiver of UatNty, Assumption of Rtek and Indemnity Agreement entendí to at acts ot nagHgence by the Releasees, INCLUDING NEGILGENT RESCUE OPERATIONS and Is Mandad to be at broad and Inclusive as to permitted by the laws of the Province or State In which the Evontfs) Is/are conducted and that K arty portion Itereof te held Invalid, It Is agreed lhat the balance sha», notv/tthstaraing, continue In tul legal (otea and eflecL
I HAVE READ THIS RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT. Fuav UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT. AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT. ASSURANCE OR GUARANTEE BEING MADE TO ME AND INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF ALL LIABILITY TO THE GREATEST EXTENT ALLOWED BY LAW.
ALL SECTION MUST BE COMPLETED.
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